1. Does a written Architectural Modification Approval granted by Home Owners' Assoc (HOA) constitute a contract? ... between HOA and a membe...

Question

1. Does a written Architectural Modification Approval granted by Home Owners' Assoc (HOA)

constitute a contract? ... between HOA and a member? (If not, then what?)

I assert: Parties of legal capacity & for legal purpose!

I assert: Consideration is A) HOA's promise not to interfere with HOA member's home-

improvement

as defined within scope of Approvals

B) Further consideration might be:

i) Member's economic or perceived satisfaction of improvement.

ii)Member's promise to stay within parameters/descriptions of

Archit. Modif. Approvals.

2. Does a building permit granted by a municipal bldg Dept constitute a contract?

3. For further legal theory argument (please disregard if too complex)

I. HOA asserts it can unilaterally withdraw its own architectural approvals;

II. HOA mmber asserts he can unilaterally change architectural modifications based on:

A) Precedence: Changes are within HOA community standards

B) Precedence: HOA has shown a trend of approving modifications after

commencement of work.

C) Mitigate:

i. HOA member made architectural modifications slightly different than Approvals

to mitigate descrepancy between HOA approvals and CA Bldg Code, and to mitigate

Board President's personal complaints.

ii. Specifically, Engineered blueprints & Bldg Permits called for a 5.0x4.0 window to

meet emergency egress & Title 24. HOA approvals allowed 4.0x3.0 window.

iii. Since a standard 4.0x3.0 window does not meet emergency egress, HOA member

installed 3.0x3.0 casement window which meets emergency egress requirements.

I humbly solicit response on any or all of the above.

Thank you,

Michael Joseph, Brkr

Answer

I would say the answer to your first question is probably, "yes." By giving its approval the HOA agrees not to interfere with the modifications and the homeowner agrees to follow the approvals. As long as there is a meeting of the minds on what the approvals are, I'd say there is a contract. Once there is a contract neither side can unilatrally modify it. So both HOA and homeowner are wrong. If the homeowner is unable to perform the contract as agreed due to mutual mistake of fact, specifically that he could make the modifications as agreed without violating the relevant provisions of the building code, the contrace may be (probably is) voidable for mutual mistake. The HOA and the homeowner then have the option to cancel the contract, or negotiate a modification. Neither has the right to unilaterally simply change the terms. If homeowner proceeded with modifications that did not conform to CC&Rs;and the agreed approval, the homeowner has acted illegally.